Foreign Criminals and the Right to Family Life

Until the nineteenth century, the restrictions on state action in migration were strictly set and removals were limited to criminal matters. The European Convention on Human Rights has raised the issue of whether removal following a criminal conviction can amount to an intervention of one’s right to respect for his or her private and family life, contrary to Article 8 for many years. As early as 1991, they considered it in the case of Moustaquim [1991] ECHR 3. Indeed, the prime aim of this migration control was to prevent ‘aliens’ from disruptive public order.

The issue of foreign criminals raises the purpose of interference ‘for the prevention of disorder and crime’.

This aim has not changed until now. As mentioned under Article 8(2), any interference with the rights under Article 8(1) must be in accordance with the law and be for one or more of the purposes listed under Article 8(2). The issue of foreign criminals raises the purpose of interference ‘for the prevention of disorder and crime’. When the Secretary of State decides on whether a deportation order is proportionate, a question arises as to whether it is ‘conducive to the public good’.

In assessing the ‘public good’ argument, some tension may arise. In N (Kenya) [2004] EWCA Civ 1094, the Secretary of State established an equation for how to measure when a deportation is ‘conducive to the public good’. Evaluation should be between the impact of the individual’s continued presence in the UK, plus the likelihood of re-offending and the wider social impact of the deportation. The latter was held to be the most important factor by the European Court of Human Rights. However, it is measured by the deterrent effect on other would-be offenders which is substantially tough to prove.

Deportation of criminal individuals can be seen as the expression of society’s revulsion of the offence committed. Therefore, the courts undertake an investigation to conclude whether the state has achieved a fair balance between the individual interests of the applicant in respect of his or her right to private and family life on the one hand, and the general community interest in the prevention of disorder and crime on the other. Recent cases show that the courts are scrutinising more closely on the seriousness of the offences committed by the foreign citizen, and predominantly analysing their relation to the elements of family and private life under Article 8.

The leading case under this heading is Omojudi v UK [2009] All ER (D) 273 (Nov). This case contemplates the deportation of a long term settled migrant from the UK to Nigeria and their subsequent to a criminal conviction. The deportation order was on the basis that it was necessary for the protection of disorder and crime and for the protection of health morals. On appeal, the judge held that deportation was proportionate as the applicant remained a probable offender who posed a threat to the society, regardless of the fact that deportation would disturb his family life in the UK.

If the crime committed is of a serious nature, as shown by Uner, then such presumption could be rebutted.

As a result, the applicant appealed to the ECtHR claiming a breach of Article 8. Although the deportation was in accordance with the law in the pursuit of a legitimate aim, it was not claimed to be in a ‘democratic society’. Thus, the courts looked at the criteria in Uner v Netherlands [2006] 3 FCR 340 ECHR, which is what courts apply when considering whether a deportation order can be deemed ‘necessary in a democratic state’. However, once personal circumstances were recognised it was discovered that a strong family tie did in fact exist, and that great difficulty would be imposed onto his family if they were to move to Nigeria.

Another aspect of the case is the courts examination of the ‘nature and seriousness of the offence’ committed by the immigrant and the criminal conduct prior and subsequent to the relevant offence. In respect of Article 8(2), states are empowered to control their borders from the prevention of crime, if the interference with the right to private and family life can be justified. Thus, it is crucial that any judgment of a ‘proportionate’ decision to deport resulting from a criminal conduct, must involve the consideration of the nature and seriousness of the offence. On that basis, the UK government clarified that it was reasonable to consider the whole history of offending by the applicant.

In the case of foreign criminals being deported after having spent considerable amount of years living in the host country, this can pose another problem. Under the case of Uner, it was suggested that ‘virtual national’ cases should operate a presumption against deportation. However, in Uner, the applicant could not fall under such category. It could be argued that if such a presumption against deportation was in place, then legal certainty in this area would improve. If the crime committed is of serious nature, as shown by Uner, then such presumption could be rebutted. Furthermore, whether deportation will constitute a proportionate interference with Article 8 is fact-specific, as stated by the courts, and that the risk of reoffending must be up for deliberation. Even so, a problem is identified in how the risk of re-offending is actually examined. The history of offending by the applicant is taken into account, but can this be sufficient enough to base a predictable factor, which may distinguish whether or not a foreigner is deported. The fact that this issue is left to the discretion of the courts, with no actual analytical structure may potentially give rise to some problems in the removal of foreign criminals cases.

Arguably, there are still concerning issues regarding the analysis of re-offending, which in due time may be developed through common law.

The courts applied the Uner criteria in Khan v UK (6222/10) Unreported December 20, 2011. Khan’s deportation offence was of very considerable seriousness and he relapsed into re-offending soon after his prison release. As Khan lived in the UK through most of his childhood and adult years, which is a considerable amount of years, critical reasons would be required to render his removal proportionate. It was held that the risk he portrayed towards public harm and the chances of re-offending overruled his qualification of Article 8 as his private and family life in the UK was not firm enough. Plus, he had returned to Pakistan, the destination of deportation, on two occasions which demonstrated a ‘connection’ with that country. The courts focused on the comparison between him and his brother (who was also due to be deported, but whose deportation was quashed as he had stronger ties with the UK than Khan did) and moreover, the fact that he re-offended so soon after his release. Evidently, public interest will outweigh many factors regardless of whether a private or family life exists, which is to the detriment of foreign criminals.

Similarly in Munjaz v UK 2913/06 (2012) MHLO 79 (ECHR), the ECtHR held that the interference with the Article 8 rights was necessary in a democratic society, in pursuit of the legitimate aim of preventing crime. This conclusion was raised firstly, due to the fact that the offence was of a serious nature committed by the applicant, when viewed against the background of his history or criminal conducts. Secondly, the applicant’s lapse into re-offending was so soon after his release from prison. Thirdly, in relation to his family ties, the length of time since he last had face to face contact with his children, as a result of his offending and imprisonment, demonstrated a lack of evidence as to the existence of a positive relationship with his children. Finally, there was the absence of a significant level of integration into British society. The way in which the courts arrived at this decision and the method of analysis is an example of all the criteria mentioned above applied effectively, although it is difficult to measure the probability of re-offending as explained.

Arguably, there are still concerning issues regarding the analysis of re-offending, which in due time may be developed through common law. Legal certainty is then put back on track, following a criminal conviction, by considering the ‘totality of social ties’ the applicant possesses. As states take on board the conclusions of the courts and regulate their legislations and practice in this area, the ECHR is likely to have a further increased level of influence on areas of immigration law, especially removal issues, for reasons of public order and crime prevention.

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